GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
warning other companies or breaking an official seal – may lead to an additional fine. It must be noted, however, that there is no obli - gation under German law to notify the authori - ties of a potential infringement. Under the FCO′s Leniency Notice, only full and constant co-oper - ation can lead to a reduction of fines. 2.8 Protection of Confidential/Proprietary Information Information and documents that must be sub - mitted to the FCO include confidential informa - tion such as business secrets. However, such information will not be published in the public versions of the FCO’s decisions. The FCO grants the parties subject to cartel proceedings access to file once the statement of objections has been issued. However, such access can only be obtained via external coun - sel, who are themselves legally bound to pro - tect the business secrets of other parties. They may only forward such information to their client where necessary for defence purposes. Never - theless, this bears the practical risk that con - fidential information may become available to competitors or third parties. Aggrieved third parties can also request access to file. However, they will generally only receive the non-confidential version of the fining deci - sion. Special rules apply in the case of civil claims for cartel damages (see 6.1 Private Rights of Action ). 2.9 Arguments Against Enforcement Actions There is no set procedure for defence counsel to raise arguments against enforcement. Facts and arguments can be brought forward at any time. However, for strategic reasons, it may be advis -
able in practice not to bring forward any facts or arguments before the FCO issues its statement of objections and counsel can gain access to file. The FCO will usually set a deadline to reply to the statement of objections. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency German law provides for a leniency programme that foresees full immunity for the first leniency applicant and substantial reductions of fines for subsequent applicants. In view of the implemen - tation of Articles 17-23 of the ECN+ Directive via the tenth amendment to the ARC, the main parts of the previous FCO’s administrative leniency notice ( Bonusregelung ) became legally binding (Sections 81h to 81n of the ARC). In addition, the FCO updated its internal administrative leniency guidelines in August 2021 (enabled in Section 81h(3) of the ARC). They emphasise the impor - tance of personal statements by individuals directly involved in illicit behaviour. In addition, the FCO is now expressly required to provide information in the event of proceedings being discontinued. The leniency programme is available to natu - ral persons, undertakings and associations of undertakings. The granting of immunity requires that: • the applicant is the first participant in a cartel to contact the FCO before the latter has suf - ficient evidence to obtain a search warrant; • the FCO is provided with verbal and written information and, where available, evidence that enables it to obtain a search warrant;
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